I. INTRODUCTION: THE NEED FOR DELEGATED LEGISLATION AND THE PROBLEM OF LEGITIMATION
All countries that adhere generally to the principle of separation of powers find themselves in a dilemma. To an increasing extent, law in these countries is made not by the proper legislature, that is the elected parliament, but rather by the executive branch. The exigencies of modern States have led legislators to transfer much of their lawmaking powers to administrators. These developments have placed administrators in a very powerful position. Thus, it has become one of the major tasks of constitutional and administrative law to channel this power. All jurisdictions acknowledge the departure from the traditional doctrine of separation of powers, but equally have to ensure that delegated legislation carries sufficient democratic legitimation.Footnote 1 To exemplify this, the following comparison focuses mainly on the law governing a subordinate legislationFootnote 2 in the US (‘rules’Footnote 3), Britain (‘statutory instruments’Footnote 4) and Germany (‘Rechtsverordnungen’Footnote 5). Other countries and EU Law will be referred to en passant.
Constitutional purists may complain about the shift of lawmaking authority from the legislative to the executive branch. It is at odds with the idea of the separation of powers, an idea that is considered a major guarantee for freedom. The constitutional purist may also mourn that the authority shift departs from the basic principle that ‘delegatus non potest delegare’. As John Locke said in 1690Footnote 6: ‘The Legislative cannot transfer the Power of Making Laws to any other hands. For being but a delegated Power for the People, they, who have it, cannot pass it over to others.’ These considerations, however, have long been bypassed by the need for administrative institutions to exercise lawmaking authority. The German Constitution, the ‘Grundgesetz’ (Basic Law), explicitly states in Art 80 paragraph 1 sentence 1 that ‘(t)he federal government or a Federal Minister … may be authorized by statute to issue rules having the force of law’. It is the purpose of the norm to disencumber the legislature.Footnote 7 The US Supreme Court acknowledges that ‘(i)n our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power … ’.Footnote 8 Similar reasoning governs British Law.Footnote 9 It seems to have been generally, if reluctantly, accepted that the complexities of modern government require the creation of an ever greater body of legislation, and that a parliament is too cumbersome to act as sole legislator in all areas of law. Also, European law acknowledges that the delegation of legislative power from Council to Commission is necessary (Art 202 ECT).Footnote 10 It is simply not possible to govern a highly interventionist state solely through primary legislation. After all, in all countries compared, administrative law-making powers became the rule rather the exception. Administrative legislation completely dwarfs primary legislation in numbers.Footnote 11 Delegated legislation, in other words, matters, and matters increasingly. Sometimes the empowering legislation even allows the executive to amend the primary statute, or some other statute, through delegated legislation (in the UK nicknamed ‘Henry VIII clauses’Footnote 12).
The separation of powers was originally rooted in the fear of tyranny. Montesquieu stated 1748 in his considerations ‘De l'esprit des lois’Footnote 13: ‘Si le monarque prenoit part à la législation par la faculté de statuer, il n'y auroit plus de liberté.’ There is an echo of this in the Blackstone's Commentaries.Footnote 14 However, these concerns have in the meantime lost their significance, as the executive branch itself carries democratic legitimation. Nevertheless, the whole scale of delegated legislation still raises fears that we are about to be ruled by bureaucracy. Lord Hewart once voiced these fears castigating the development of executive legislation as ‘New Despotisms’.Footnote 15 Although this analysis seems to be hypercriticalFootnote 16, one cannot deny the need for special democratic legitimation as the delegated legislation is further remote from the source of democratic legitimation, the people, than parliamentary law-making. As a general rule executive officials are not responsible at the polls as are elected representatives. Paul Craig states:Footnote 17 ‘We are concerned about rule-making … because our ideas of representative government tell us that legislative norms achieve validation and legitimacy through the expression of consent in the legislature itself. The existence of rules of a legislative character, other than primary statutes, poses the problem of how the validation … is to be accomplished.’ One might object that as the executive branch is better suited to make technically sound rules, delegated legislation carries legitimacy by rationality.Footnote 18 But the rationality of government decisions will always be questionable. There is no absolute truth in policy-making. The relevant facts, their assessment, the policy's goal, and the appropriate way to achieve it are the object of political struggle. Thus, executive rules must be legitimate beyond their technical soundness. Democratic legitimation is necessary.Footnote 19 In the long run, no government can overcome a want of legitimacy by reliance upon coercion.Footnote 20 The primary source of democratic legitimation is the people. The source can be used either indirectly by relying on elected representatives or directly by an effectively regulated public participation in rule-making. It can broadly be said that Germany and the UK use mainly the first way to democratic legitimation (see II B and C) while the United States follows the second path (II D).
II. DEMOCRATIC LEGITIMATION BY PARLIAMENTARY PREDETERMINATION OF THE EXECUTIVE RULE
In all the countries compared, however, enabling statutes provide for a basic democratic legitimation of executive rules. In the US, as in Germany, the executive has no inherent legislative power.Footnote 21 As a general proposition, the executive can exercise only such legislative powers as are specifically delegated by the legislature. In this respect German and American law clearly differ from French law which recognises an inherent power with the executive to legislate through regulations (‘réglements’) with respect to all matters not specifically assigned to the legislature.Footnote 22 Portugal for example follows a comparable approach.Footnote 23 British law is more similar to the German and American legal systems putting aside an exceptional and very limited power of legislation under the prerogativeFootnote 24 (which can also be found in ItalyFootnote 25 and SpainFootnote 26), the British executive can legislate only if authorized to do so by Parliament. As Cecil Carr poetically phrased it, delegated legislation ‘is directly related to Acts of Parliament, related as child to parent … ’Footnote 27 Consequently, in all jurisdictions the terms of secondary legislation are subject to judicial review to ensure that they do not exceed the competence the proper legislators have granted in primary legislation. While the necessity of a delegating statute is shared in the compared countries, the requirements on its content diverge.
A. The German Approach: Forcing Bundestag to Make the ‘Essential’ Legislative Decisions
The German legal system relies primarily on substantive parliamentary predetermination of the executive rule.Footnote 28 The statute is considered to be the ‘central building block of the democratic constitutional structure’.Footnote 29 Thus the Bundestag is constitutionally required to define the ‘content, purpose and scope’ of legislative powers which are delegated to the executive (Art 80 paragraph 1 sentence 2 Basic Law). These requirements can similarly be found in Swiss constitutional lawFootnote 30—as well as in the judicature of the European Court of JusticeFootnote 31 (and in the European Constitutional Treaty, Art I-36 CT).Footnote 32 As the German Bundesverfassungsgericht, the Federal Constitutional Court, puts it: The legislature is obliged itself to make ‘significant’ decisions (so-called ‘Wesentlichkeitstheorie’).Footnote 33 If the enabling legislation does not fulfil these criteria, the statute is void.Footnote 34 In this way it is to be guaranteed that the parliament elected by the people bears political responsibility for all laws, including those created by the executive. Accordingly democratic legitimation is achieved by the complex parliamentary procedures directed towards the aims of transparent decision-making, a balance of interests, and participation by political minorities. Against this background it is accepted in Germany (albeit not without controversy) that a delegating statute might even empower the executive to amend primary legislation.Footnote 35 In addition, under German law all executive bodies with legislative powers are ultimately politically answerable to parliament. Delegates may only be the Federal government, Federal ministers and state governments (Art. 80 paragraph 1 sentence 1 Basic Law).Footnote 36 All of them are directly monitored by parliament.Footnote 37
B. The American Approach: The Non Delegation Doctrine' is ‘Moribund’
Originally American law was similar to German law. According to the so-called ‘non delegation doctrine’ the role of Congress was to make the ‘important choices of social policy’. The Supreme Court once forced Congress to set ‘standards’ by means of delegating statutes for the executive regarding the extent legislative powers conferred upon it.Footnote 38 The parallel is striking but not surprising, since American law was to a certain extent godfather at the birth of the actual German constitutional law after the Second World War.Footnote 39 In fact, the wording ‘content, purpose and scope’ in Art 80 Basic Law can be traced back to the post-war Office of the Military Governor of the US (OMGUS). In the meantime, however, American law has diverged significantly from the German approach. The Supreme Court has given up enforcing the ‘non-delegation doctrine’.Footnote 40 Congress tends to use the given leeway extensively by delegating largely unlimited legislative powers to the executive. Such delegations are characterised by Davis in view of the frequently applied ‘public interest standard’ as ‘Here's the problem—deal with it’ empowerment.Footnote 41 The ‘non-delegation doctrine’ is—as seen by Chief Justice Marshall—‘moribund’.Footnote 42
In addition, American law does not require that delegated legislative powers are exclusively exercised by executive bodies that are as in Germany and in Britain answerable to a parliament. Rather, ‘insulation from the democratic process’ is intended to guarantee that executive legislation is made free from political considerations and solely with regard to objective considerations and the public interest.Footnote 43 This element of ‘anti-democratic distrust of political government’Footnote 44 and reliance on administrative ‘expert managers’ has a long history in the USA and—while somewhat controversial—is valid to this day.Footnote 45 The Supreme Court emphasises: ‘Broad regulatory powers … were most appropriately vested in an agency … relatively immune from the “political winds that sweep Washington”.'Footnote 46 Congress generally mandates ‘independent regulatory commissions’ to undertake legislative tasks, and these commissions—unlike the ‘executive branch agencies’Footnote 47—are politically unaccountable either to Congress or the President. According to the Supreme Court, their legislative activity is ‘free from executive control’,Footnote 48 and may not stand ‘under the Damocles Sword of removal by the President’Footnote 49. Not the least for this reason, the ‘independent regulatory commissions’ are among the most powerful official bodies in the US. McGarity explains:Footnote 50 ‘Economic regulation is typically implemented through “independent” commissions composed of several members who are not subject to the direct control of the President. These commissions are typically given a broad mandate to regulate in the “public interest”’.
C. The British Approach: Parliamentary Sovereignty and ‘Skeleton Legislation’
British state practice on delegating legislative powers seems to be similar to the American. Constitutional law rests on the doctrine of unlimited sovereignty of Parliament. Safeguards like those provided in the constitutions of the US and Germany are unknown in this country. Thus there are no constitutional restrictions on the delegation of legislative powers (comparable to the pre-war German LawFootnote 51). Unlike the German Bundestag the Westminster Parliament is not constitutionally forced to itself make the ‘significant’ decisions on the regulatory field. Contrary to the actual German law the passage of ‘skeleton legislation’ is as legally acceptable in Britain as it is in the US. Much of the broadly delegated legislation is of real importance.Footnote 52 The power given to the executive not merely to fill in technical details, but also to decide broad issues of policy, leads in the United Kingdom to a consequential shift in the balance of power between Parliament and the executive.Footnote 53 Of special concern is the increasing use of so-called ‘Henry VIII clauses’ which allow the executive to amend primary legislation.Footnote 54
D. Comparative Assessment of the Different Approaches
The development of American law of delegated legislation and the British example could lead in Germany—as in Switzerland—to an argument for waiving the strict requirements on parliamentary predetermination of the executive norm. Thus calls are heard to abolish the restrictive delegation standards laid down in Art 80 Basic Law, so as to afford the parliament an unlimited right of delegation. The question of what parliament should itself regulate is said by some German scholars to be one not of constitutional law but rather of constitutional policy, to be addressed by parliament itself according to political criteria.Footnote 55 Similar reasoning governs British law (‘sovereignty of parliament’) and is common in the US (‘judicial self-restraint’).Footnote 56
1. No relief without good cause of the parliament's responsibility for substantive legislation
Adopting the American and British regulatory approach under German law nevertheless seems inappropriate. The loose requirements on the delegating statutes have led in the USA to a ‘crisis of legitimacy’ and are subject to strong criticism as ‘legiscide’.Footnote 57 With limited substantive demands made upon them, the ‘independent regulatory commissions’ are seen as politically independent ‘principalities of power’.Footnote 58 American courts, however, despite hefty criticismFootnote 59 and without addressing the issue, have accepted the situation. They are reluctant to declare the ‘fourth branch, a haphazard deposit of irresponsible agencies and uncoordinated powers’Footnote 60 as unconstitutional.Footnote 61 The independent regulatory commissions seem to be too strongly rooted in American state practice as the ‘principal structural development’ of the 20th centuryFootnote 62 and as ‘part of legal folklore’Footnote 63. Suggesting the German model of confining the empowerment to delegates which are directly accountable to elected representatives of the people does not seem to be very promising. The Supreme Court Justice O'Connor is said to be ‘scared’ by the idea that the traditional administrative structure could be unconstitutional.Footnote 64 Nevertheless, German state practice demonstrates that the proper legislature under the ever-present threat of unconstitutionality is in many cases well able to prescribe for the executive a substantive programme of delegated legislation.Footnote 65 This would well suggest that members of Congress are—as the British MPs—more unwilling than unable to decide ‘hard cases’ themselves.Footnote 66 The American legal position can only be understood against the historical background of Roosevelt's ‘New Deal’, when the President threatened the Supreme Court with his ‘court packing plan’.Footnote 67 In recent times there has been no lack of attempts to resuscitate the ‘moribund’ non-delegation doctrine. But, even the energetic efforts of the former Chief Justice Rehnquist have failed to force Congress to decide on the ‘important’ or ‘fundamental policy issues’, and to declare as unconstitutional under the non-delegation doctrine any too far-reaching legislative enabling powers.Footnote 68 For the UK Paul Craig explains that for a government with an onerous legislative timetable, or only a small majority, there is always the temptation to pass skeleton legislation with important aspects to be sketched in by the Minister.Footnote 69 There are considerable objections voiced in Britain against ample delegations of legislative powers. The Procedure Committee concluded that there was ‘too great a readiness in Parliament to delegate wide legislative powers to Ministers, and no lack of enthusiasm on their part to take such powers’.Footnote 70 Notwithstanding the ‘proper purpose’ doctrine (which should ensure that delegated powers are only used for the purposes expressly or implicitly stated in the parent statute)Footnote 71 and the duty of the House of Lords' Delegated Powers and Deregulation Committee to report whether the provisions of a bill inappropriately delegate legislative power,Footnote 72 there is talk of ‘downgrading the role of Parliament.’Footnote 73 Such criticism supports the approach of the German legal system, according to which the legislator is required to make a substantive decision and where the legitimation of executive delegated legislation is primarily a question of its basis in statutes.Footnote 74 This also corresponds to the German constitutional history, which in the context of the Weimar disaster (characterised by extensive use of ‘Notverordnungen’, emergency rules, by the Reichspräsident Footnote 75) and national socialist dictatorship (which was originally based on the extremely far reaching ‘Ermächtigungsgesetz’ 1933Footnote 76) is coloured by a conscious turning away from unlimited delegation powers of the legislature.Footnote 77 Parliament is elected by the people and should not without good cause be relieved of its responsibility for substantive legislation. Statutes as ‘central regulatory instruments’ form a basic model which is worthy of preservation.Footnote 78 To ensure that this is not undermined should in the US be the ‘courts’ job'.Footnote 79 In the light of parliamentary sovereignty in the UK, the German (and Swiss) model might be considered at least as a matter of political prudence by the Westminster Parliament. Providing for substantive parliamentary predetermination might particularly appease the critics objecting to the use of ‘Henry VIII-clauses’.
2. Limits to substantive predetermination in the enabling legislation
However, the proper legislature in Germany is also subject to the ‘dilemma’Footnote 80 of in certain cases being unable to itself solve complex regulatory problems and to predetermine the content of executive norms by means of taking essential normative decisions. Anything else would be parliamentary ‘calumny’ or self deception.Footnote 81 The impossibility of more precise statutory regulation is often an argument in the German jurisdiction for relaxing the restrictions on the empowering legislation in Art 80 Basic Law.Footnote 82 Comparison with the American and British systems underlines the sense of such an argument.Footnote 83 In this way in all countries the question arises of whether and by what means democratic legitimation can be supplemented.
III. DEMOCRATIC LEGITIMATION BY PARLIAMENTARY PARTICIPATION IN THE EXECUTIVE RULEMAKING PROCESS
In Germany as in Britain, a common tool to compensate for the lack of substantive predetermination of executives rules by the parliament is the technique that parliament in some ways participates in the executive rule-making procedure.
A. The German Approach: Bundestag Participating in the Process of Making Rechtsverordnungen
It is the main feature of German law governing administrative legislation that it provides for rather intense parliamentary participation.Footnote 84 Following the German tradition, which can be traced back to the reign of the Prussian kings and German emperors in the 19th century,Footnote 85 the Bundestag as a whole can participate in the process of making ‘Rechtsverordnungen’ in three distinct ways. The most important tools to ensure parliamentary influence are so called ‘Zustimmungsverordnungen’ which need the consent of parliament before they are promulgated. However, some subordinate legislation has only to be explained by the administration to the Bundestag. Parliament then has the chance to voice its opinion (‘Kenntnisverordnungen’). This method has for example been used to inform the parliament concerning the implementation of EC directives by subordinate legislation.Footnote 86 Finally, there are ‘Aufhebungsverordnungen’ which can be vetoed by the Bundestag after their promulgation. The participation of the parliament as a whole is considered as constitutional. The Bundesverfassungsgericht asserts no violation of the separation of powers.Footnote 87 The Court only requires a ‘legitimate interest of the legislature’ (‘legitimes Interesse der Legislative’) to maintain influence on the sub-legislative law-making. However, no legislative delegation on the federal level requires participation of committees of the Bundestag in the process of developing administrative rules. The reasoning behind not using this legislative tool on the federal level can be traced back to a decision of the Bundesverfassungsgericht in 1950, which asserted that committees of the legislature lack the authority to participate in the legislative process independently.Footnote 88 No constitutional problem is seen when parliamentary committees are only heard and merely give advice during the process of creating Rechtsverordnungen. At the state level, however, there are many examples of enabling statutes which require the consent of a parliamentary committee in the process of issuing a Rechtsverordnung.
B. The British Approach: Scrutiny on the Floor of the House and in Committees
The British parliamentary participation resembles the German situation.Footnote 89 There are three principal methods ensuring parliamentary scrutiny of delegated legislation.Footnote 90 The first mechanism simply offers information to the Westminster Parliament. Comparable to the German ‘Kenntnisverordnungen’ the empowering legislation only requires the subordinate legislation to be laid before the House. Questions may be asked, but no direct form of attack upon such legislation is possible. The second tool gives Parliament more control: similar to the German ‘Zustimmungsverordnungen’ the empowering legislation requires the subordinate legislation to be subject to an affirmative resolution of each House or the House of Commons alone. The third way is the negative resolution procedure. In this case a private member must secure time to attack the subordinate legislation. The instrument is open to a ‘prayer of annulment’ within 40 days. This way of ensuring parliamentary scrutiny resembles the German ‘Aufhebungsverordnungen’. The affirmative resolution procedure adds the strongest legitimation to the subordinate legislation. However, relatively few statutory instruments are subject to the procedure. In contrast to German state practice the negative procedure is most often chosen.Footnote 91 But it is difficult for an MP to secure sufficient support to move a prayer for annulment. In practice a very large portion of prayers on negative instruments are not debated at all, and the procedures do not provide for an adequate parliamentary consideration of the general run of statutory instruments.Footnote 92 Nevertheless, it is important to note that control on the floor of Parliament is supplemented by scrutiny in committees.Footnote 93 Committees, however, do not have the right of a final decision, and in this respect British Law resembles the German Law on the Federal level.
C. The American Approach: Legislative Veto is Unconstitutional
In view of the far-reaching delegated powers and the independence of public bodies promulgating rules, one could be led to think that the American Congress could at least—as do the Bundestag in Germany and the British Parliament—determine that rules created by the executive should require its prior approval.Footnote 94 Indeed, American law did once provide for such a legislative veto and Congress used to exercise itFootnote 95 until—to the disappointment of many commentators—the Supreme Court in the notorious Chadha case (1983) pronounced the legislative veto to be unconstitutional on the grounds that it infringed the principle of the separation of powers.Footnote 96 Delegated legislation was considered to be the task solely of the executive. The legislature could only regain the power to create norms through a formal legislative procedure in which both chambers (‘bicameralism’) and the President (‘veto or approval’) participate. While some types of Congressional review of administrative rules are constitutional such as ‘report-and-wait’-provisionsFootnote 97, the legislative veto in its classic sense is generally no longer an option for Congressional control over rulemaking.
D. Comparative Assessment of the Different Approaches
Even if in the United States the legislative veto could not prevail, from the comparative law point of view, the former American practice of legitimating delegated legislation through participatory rights of representatives of the people, should in the German and British discussion be an argument for rather, than against, the compensatory effect of parliamentary participation.
1. Compensation for a lack of definition in the delegating statute by parliamentary participation in the creation of executive norms
The judgments in which the Supreme Court declared the parliamentary right of participation to be unconstitutional are criticised in the US for their overly formal rationalisation. It is regretted that ‘the most effective means of legislative control over rule-making’ was knocked out of the hands of Congress.Footnote 98 German law is governed by the (albeit controversialFootnote 99) idea that in all cases in which, despite all efforts, it is in effect not possible to give an adequately defined statutory regulation, a lack of substance in the empowering legislation may be compensated by retrospective parliamentary participation in the creation of the executive rule.Footnote 100 Similar reasoning is voiced in SwitzerlandFootnote 101 (and governs to a certain extent the ‘comitology’ procedures in EU lawFootnote 102). The legislature thus assumes political responsibility for the executive rule beyond the original empowerment by means of subsequent approval, so that in cases of ‘Zustimmungsverordnungen’ a noteworthy additional level of democratic legitimation is effected. This approach could also be considered in the UK where only relatively few statutory instruments are subject to the affirmative procedure. The German model suggests that the most important types of delegated legislation should be subject to the affirmative resolution procedure. Such claims have already been voiced in British scholarship.Footnote 103 Likewise, the Joint Committee on Delegated Legislation has recommended that the affirmative procedure should be used for rules which substantially affect the provisions of primary legislation, impose or increase taxation, or otherwise involve special considerations.Footnote 104 These considerations would also take into account that it is—as we have seen—difficult for an MP to secure sufficient support to move a prayer for annulment in the negative resolution procedure. Above all, the German approach might be particularly fruitful to mitigate the objections against ‘Henry VIII clauses’.Footnote 105
2. Limits to compensation
However, the limits to compensation must also be borne in mind. While it is true that delegated legislation gains in democratic legitimation through the participation of the directly elected parliament, the German Bundesverfassungsgericht stresses that parliamentary participation nevertheless fails to reach the level of legitimation of formal statutes because of the difference—also emphasised by the US Supreme Court—between the approval procedures and legislative procedures.Footnote 106 In addition, this democratic coupling has its drawbacks in that the parliamentary task of formulating policy etiolates.Footnote 107 Furthermore, parliamentary control of delegated legislation is severely restricted as executive norms can normally only be approved or disapproved in their entirety and without amendment.Footnote 108 Under German constitutional law parliamentary reservations to change an executive rule are even considered unconstitutional.Footnote 109 A realistic view of German and British state practice finally reveals that the effectiveness of parliamentary control of subordinate legislation is constrained by the shortage of information and time for debate.Footnote 110 Some British scholars even state that it is a constitutional fiction to say the Parliament exercises any real safeguards over delegated legislation.Footnote 111 Beatson concludes:Footnote 112
The British system of legislative veto has proved less than satisfactory in rendering administrators accountable to their political superiors and protecting those affected by administrative rules. This limited success stems from many factors. These include de facto executive control of the legislature, the unavailability of information about the substance of a rule in the time available for control, the limited time available for debate, and the apparent unwillingness of Members of Parliament to take an interest in scrutiny, especially for technical infirmities.
Thus under German law a parliamentary reservation can never fully replace the substantive requirements of Art. 80 Basic Law. The approval of the Bundestag could only function as a merely supplementary democratic legitimation.Footnote 113
IV. DEMOCRATIC LEGITIMATION BY PUBLIC PARTICIPATION IN THE EXECUTIVE RULE-MAKING PROCESS
In view of the uncompromising jurisprudence of the Supreme Court on the legislative veto and the flexible approach to substantive requirements made upon the empowering legislation, American law is left with only the possibility of securing democratic legitimation of delegated legislation by means of the involvement of the public in executive legislative procedures. This concept should be taken into consideration in Germany and the UK.
A. The American Approach: The Model of Participatory Democracy
The American Administrative Procedure Act (APA) provides for participation by all interested persons as a necessary step in all cases of delegated legislation (§ 553 APA).Footnote 114 The public authority has to publish a proposed rule and to give notification of which empowering legislation the delegated legislation is based on, what the factual substantive basis for the decision-making is and how interested persons may participate in the legislative procedure (‘notice of proposed rulemaking’).Footnote 115 In addition, the public authority has to give an opportunity to ‘anyone who makes the effort to write a letter’Footnote 116 to participate in the process of legislation (‘right to comment’).Footnote 117 The agency has to take account of the ‘significant comments’ either in writing or by means of a hearing.Footnote 118 Finally the agency also has to compile and make publicly available a ‘rulemaking record’ with a thoroughly reasoned ‘statement of basis and purpose’.Footnote 119 The participatory rights can be enforced in Court. Judicial review is much easier to achieve in the USA than in Germany.Footnote 120 Claims by individuals, interest groups and associations are increasingly given locus standi (so-called ‘liberal standing’).Footnote 121 A claimant can appear widely as ‘private attorney general representing the public interest’.Footnote 122 Also he need not await the enforcement of the rule (‘pre-enforcement review of rules’).Footnote 123 American courts scrutinise the observance of procedural requirements especially strictly (the so-called ‘hard look’ doctrine). As the procedural control under the ‘arbitrary or capricious test’ also covers the objective correctness of the basis for the decision,Footnote 124 judicial control of executive rule-making in the US is in general tighter than in Germany.Footnote 125
Following the US Supreme Court's reasoning public participation serves as compensation for the lack of substantive definition of the empowering norm.Footnote 126 According to the (albeit controversial) American legal approach, an effective and ‘fair’Footnote 127 public influence on the rule-making authority in turn secures a democratically legitimated legislative decision.Footnote 128 One basis for this, among others,Footnote 129 the so-called ‘interest representation model’Footnote 130 (somewhat supported by the ‘public choice theory’Footnote 131). The executive legislation process should be so structured that it is similar to the parliamentary equivalent.Footnote 132 American scholars explain: ‘An attitude about delegation is not to worry about how broadly Congress delegates power to agencies, and to instead pay attention to how the agency uses the power.’Footnote 133 According to the American legal view, delegated legislation then has democratic legitimation similar to a statute if the public exercises influence over the rule creating authority in a way similar to that exerted on parliamentarians (‘corridoring’ rather than ‘lobbying’Footnote 134).Footnote 135 The tightly structured and judicially controlledFootnote 136 public participation in executive dedicated legislation is seen as a ‘substitute’ for the classical democratic process of decision-making, where the parliamentary decision-makers are elected and are politically answerable to the voters.Footnote 137
B. The German Approach: No General Requirement of Public Participation in the Process of Making Rechtsverordnungen
Compared to the American rule-making procedure, German executive rulemaking institutions are relatively free from external requirements.Footnote 138 As a general rule German law does not require public participation in the procedure of making sub-legislative law. It is normally at the discretion of the authority to what extent the public are involved in the creation of delegated norms. Furthermore, there is no general requirement that reasons must be given.Footnote 139 Some modern statutes, however, provide for some public participation in the form of hearings of affected interests (‘Anhörung beteiligter Kreise’).Footnote 140 But the Bundesverfassungsgericht has stated that there is no constitutional requirement of public input into the rulemaking process.Footnote 141 The Court asserted that the legislature is free to decide whether it requires hearings in the process of making Rechtsverordnungen and who might participate in these hearings. The situation is different for individualised administrative orders (‘Verwaltungsakte’). To the extent those decisions infringe on the rights of the citizens, participation is constitutionally required in the form of a hearing (‘rechtliches Gehör’). Participation before issuing a Verwaltungsakt, however, is interpreted as not having its roots in the principle of democracyFootnote 142, but rather in the ‘rule of law’ (‘Rechtsstaatsprinzip’) and in the fundamental rights and liberties under due process (‘Grundrechtsverwirklichung durch Verfahren’).Footnote 143
The major purpose of statutory provisions requiring public participation in administrative rule-making is to incorporate the experience and information in the administrative legislation process and thus enhance its rationality.Footnote 144 Furthermore, those requirements will foster the resource efficiency of the government as the participation may ease the later application of the administrative rules. Democratic legitimacy, however, is not the goal of those requirements.Footnote 145 German courts and scholarship even view public input sceptically in that the persons involved represent their interests and not the common good.Footnote 146 To ensure democratic legitimation they argue that the decision-making power must remain solely with the executive delegate. Representative democracy is considered as the ‘the proper form of democracy’.Footnote 147 As we will argue later this reasoning is not without doubt as public participation may at least add democratic legitimation to the subordinate legislation. On an informal level, however, consultations between executive officials and representatives of the regulated industry occur often. The German process of administrative legislation is thus rather informal.
C. The British Approach: No General Duty to Consult in Subordinate Legislation
The British law on consultation resembles the German law. It all depends on the enabling legislation. What is absent from English law is any general duty to consult, imposed either by statute or by common law.Footnote 148 Such a lack of a general statutory duty to consult is contrary to American law.Footnote 149 Furthermore there is no general duty to give a hearing in common law (‘natural justice’) where the decision under attack is of a legislative nature.Footnote 150 Likewise the right to reasoned decisions does not apply to legislative orders.Footnote 151 It has to be noted, however, that case law has recognised consultative rights in certain instances.Footnote 152 It finds its grounds in the doctrine of ‘legitimate expectations’ and the ‘duty to act fairly’. When consultation is specified by a particular enabling statute, failure to comply with the duty will generally result in the order subsequently made being held to be void (‘procedural ultra vires’).Footnote 153 British courts demand (in a remarkable resemblance to American law): ‘First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit intelligent consideration and response. Third, that adequate time must be given for consideration and response and finally, fourth, that the product of the consultation must be conscientiously taken into account in finalising statutory proposals.’Footnote 154 After all, it seems that British law takes public participation in executive legislation somewhat more seriously than German law. At least, there is a discussion about the advantages of prior consultation and the difficulties attendant upon such a regime.Footnote 155 In November 2000 the Cabinet Office has issued a ‘Code of Practice on Written Consultations’ which was—without formal legal force—to provide ‘a clear framework of standard and advice’ for departments, so as to further ‘responsive, open administration’.Footnote 156 In contrast to the American law, however, there is no general duty to ensure public participation in administrative legislation. As in Germany, the most widespread and influential procedure is the informal consultation with interests in the making of subordinate legislation. Consultation with interests and organisations likely to be affected by rules and regulations is a firmly established convention.Footnote 157
D. Comparative Assessment of the Different Approaches
In Germany as in the UK, the evaluation of the American understanding of democracy, according to which the political and legal process does not end with empowering legislation but rather in many respects only then begins, may offer ideas for consideration—particularly in cases in which the legislator is neither able to precisely determine the content of the subordinate norms nor to substantively scrutinise the delegated legislation.
1. Supplementation of the often insufficient democratic legitimation of delegated legislation by public participation
The American model could be used above all in such regulatory areas where legislation is highly controversial politically and where parliamentary legitimation alone fails to secure sufficient acceptance.Footnote 158 The rule creating authority would thereby itself become an ‘actor in the public political process’Footnote 159 and—like American agencies—would have to endeavour to gain the necessary support for proposed regulations directly from the people and above all from the affected groups. In this way publicity would supplement the often insufficient parliamentary democratic legitimation of delegated legislation and the circumstance would be recognised that there is no legitimation by expertise alone without political appraisal.Footnote 160 Such a model of delegated legislation structured in terms of participatory democracy would in addition counteract certain disadvantages of representative democracy. Participatory rights give individuals additional opportunities for influence beyond their participation in general elections. This would mitigate the frustrating circumstance that precisely the informed and interested voter has to register his differentiated reaction to a range of political alternatives in a single voteFootnote 161—a problem which has above all been addressed by the so-called ‘public choice theory’.Footnote 162 It would dissipate feelings of powerlessness of those subject to the law and their resultant apathy and distrust of the political process (‘Politikverdrossenheit’).Footnote 163 This is a challenge in the first place to the legislator.Footnote 164 Empowering statutes should not only address the question of how legislative tasks are to be allocated appropriately, but also the question of the way these tasks are to be performed.
However, Wade and Forsyth object:Footnote 165 ‘In Britain the practice counts for more than the law … It may be that consultation which is not subject to statutory procedure is more effective than formal hearing, which may produce legalism and artificiality.’ This statement is not unproblematic since legal requirements facilitate judicial control. This is necessary for the legitimising effect of public participation and to prevent ‘agency capture’ by strong interest groups.Footnote 166 Decisive for effective democratic legitimation are the transparency of the executive decision-making and the equality of opportunities to exert influence.Footnote 167 A fair procedure in the American sense—that is a transparent procedure which offers all interested parties equal opportunities of influence and is in view of the danger of ‘agency capture’ controlled judicially (particularly by allowing a pre-enforcement review)—could strengthen confidence in delegated legislation so that it would be seen and accepted through the direct coupling to the people as ‘worthy of deference and respect’Footnote 168 and thus democratically legitimated.Footnote 169 The legislator could prescribe in a statute of general applicationFootnote 170 that the rule creating authority has to publish a proposal, give all interested parties—or at least their representativesFootnote 171—an opportunity to make representations, to record ‘significant comments’ and make them available to the other participants, and finally give a reasoned decision for their legislative decisions with reference to the representations received.Footnote 172 Such participation of the public in the delegated legislation process would not only facilitate the creation of substantively correct executive rules,Footnote 173 ease their implementation.Footnote 174 and realise the constitutional principles of control of power, legal security and legal protection,Footnote 175 but would also legitimise the executive rule-making decision. This is particularly applicable because in Germany the division between legislative and adjudicative decisions (‘Verwaltungsakt’), despite all efforts, has become increasingly more random and less transparent, which is why attention must be paid to the administrative legislation and its procedural requirements.Footnote 176 Similarly Paul Craig states for the UK:Footnote 177 ‘It is not immediately self-evident why a hearing should be thought natural when there is some form of individualised adjudication but not where rules are being made.’
2. Limits to compensation and the problems of time, cost and delay
Nevertheless, there are limits to compensation. The US system of delegated legislation is not ideal. In view of the criticism voiced against the ‘democratic process ideal’Footnote 178 in the USAFootnote 179 legitimation through procedure according to the German view of democracy and on the basis of the Basic Law can only supplant but not replace parliamentary democratic legitimation of the executive norm.Footnote 180 Criticism has also been voiced in British scholarship.Footnote 181 In Germany, adopting the American approach to democratic legitimation would also contradict legal tradition, which seeks justice not in procedural fairness and a balance of conflicting interests, but above all in the substantively correct decision.Footnote 182 In the USA in recent years, there has also been a reaction against substantive law. The euphoria of the 1970s of the ‘rule-making era’Footnote 183—in which rule-making was seen as ‘one of the greatest inventions of modern government’Footnote 184 — has given way to a more sober view. There is—as we have seen—a crisis of legitimation. Above all, however, in the US delegated legislation has become so formalised that the costs—even taking account of the costs saved through public involvement in information gathering (‘information costs’Footnote 185)—have risen dramatically. An example may serve as an illustration. The Federal Drug Administration was required to lay down rules for the peanut content of peanut butter. This process of executive norm creation took nine years!Footnote 186 Anything like this has to be avoided elsewhere.Footnote 187 Beyond doubt, there is the practical problem of time, cost, and delay. In Germany and in Britain the common informal consultation with interests in the making of subordinate legislation causes no high decision costs in the short term. There is little delay. Making administrative decisions after consulting a wide range of affected interests will slow down the decision-making and will cause increased costs for the administration. In certain circumstances, however, such costs are worth bearing. As Paul Craig puts itFootnote 188: ‘If an autocrat made all decisions, they would doubtless be made more speedily. A cost of democracy is precisely the cost of involving more people.’ Furthermore, the American scholar Arthur Bonfield points out that ‘the immediately more expensive procedural requirements … might be likely to reduce societal costs in the long run. They might result in better rules. Better rules would reduce the need for subsequent agency proceedings to cure earlier mistakes.’Footnote 189 Finally, public participation enhances the acceptance of the regulation. This reduces the costs of enforcement.
V. CONCLUSION
Delegated legislation is regulated in fundamentally different ways in the US, the United Kingdom and in Germany. While some differences—such as the American distrust of political government and reliance on administrative expert managers—are merely of legal cultural interest, other divergences provide food for thought. On the one hand, those in the US and Britain should note that the proper legislature in Germany under the Damocles sword of unconstitutionality is in many cases well able to prescribe a substantive programme of delegated legislation for the executive. Parliament is elected by the people and should not without cause be relieved of its responsibility for substantive legislation. As we have seen, comparable considerations have been voiced in the American and British debate. Furthermore German and British state practice show that an inevitable lack of substantive predetermination of the executive rule in the empowering legislation can to a certain extent be compensated by retrospective parliamentary participation in the decision-making process. The comparison thus supports critics in the US who object to the Supreme Court judicature on the unconstitutionality of the legislative veto. By means of subsequent approval the legislator assumes political responsibility for subordinate legislation beyond the original empowerment. Particularly the German model suggests that the most important types of delegated legislation should be subject to the affirmative resolution procedure. The comparison underpins such claims in British scholarship. On the other hand Germany and Britain have to accept that there are limits to the substantive parliamentary predetermination of the delegated legislation and to the retrospective legitimation by parliament. In this respect the American model of participatory democracy is of value. The comparison suggests understanding public participation as compensation for the lack of influence of the elected representatives of the people. It makes clear that the democratic legitimation of secondary legislation can also be secured where the public are comprehensively involved in the delegated legislation procedure. The tendency in German and British law-making to provide statutorily for public participation finds comparative support. American law shows that the characteristic elements of the proper legislative procedure—publicity of decision making, orientation towards balance of interests and involvement of political minorities—can also enrich the exercise of delegated powers and must do so in case the due legislative process cannot exert sufficient influence on rule creation. In defiance of the indisputable increase of decision-costs, it is in these cases not sufficient to refer the citizen seeking participation to the public interest sought by representatives in the parliamentary process and to leave the determination of the circle of those involved and the mode of their involvement to the discretion of the rule-making authority.
